Filed 9/2/26 Grover H2O v. City of Grover Beach CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
GROVER H2O, et al., 2d Civ. No. B346833 (Super. Ct. No. 24CV-0264)
Plaintiffs and Appellants, (San Luis Obispo County)
v.
CITY OF GROVER BEACH, et al.,
Defendants and Respondents;
DANIEL RUSHING,
Real Party in Interest.
Grover H2O, Debra Peterson, and Brenda Auer appeal the trial court’s denial of private attorney general fees. (Code of Civ. Proc., § 1021.5.)1 The trial court had granted appellants’ first
1 Undesignated statutory references are to the Code of Civil
Procedure.
cause of action for writ of mandate after the City of Grover Beach (City) rejected a recall petition aimed at Daniel Rushing, a City councilmember. The trial court found the action did not confer a significant benefit on the general public. We conclude otherwise. We will reverse the trial court’s fee denial and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND On April 4, 2024, appellants submitted a recall petition for councilmember Daniel Rushing. The petition set forth seven grounds for recall:
(1) “Dan Rushing failed to do his due diligence for the citizens of Grover Beach. He did not vet Central Coast Blue service providers or evaluate their fiscal performance in other county agencies.”
(2) “Dan Rushing thinks he knows what’s best for the people of Grover Beach and doesn’t listen to or seek out the needs or wisdom of his constituents.”
(3) “Dan Rushing settled for water at any price rather than water at a fiscally sustainable cost.”
(4) “Dan Rushing committed the ratepayers of Grover Beach to a $33.5m share of a project to expand Arroyo Grande and Pismo Beach without asking the citizens of Grover Beach if they approve.”
(5) “Dan Rushing voted to make Grover Beach the industrial area of Pismo Beach and Arroyo Grande.”
(6) “Dan Rushing approved a project with no permits, escalating costs, and environmental risks.”
(7) “Dan Rushing approved a project to tear up newly repaired residential streets for 16 wells, a mile of pipelines, and a wastewater treatment plant in Grover neighborhoods.”
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In a letter dated April 15, 2024, the City Clerk advised that the fifth and seventh grounds “must be amended to remove information that is false, misleading, and inconsistent with” applicable Elections Code requirements. The letter relied upon Elections Code section 11042, which provides in part that the elections official “shall ascertain if the proposed form and wording of the petition meets the requirements of this chapter.” (Elec. Code, § 11042, subd. (a).) On April 24, appellants submitted a revised recall petition removing the two disputed statements.
On April 26, 2024, appellants filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief. Appellants alleged the Elections Code did not allow the City to “unilaterally” order the removal of language from the recall petition.
The City contended “it is well established . . . that elections officials have a ministerial duty to reject petitions containing false and misleading information,” and that the remedy provided under Elections Code section 11042.5 was not intended to be exclusive. That section provides for a writ of mandate or injunction upon proof that, for a petition to recall a local officer, “any or all of the statement of the proponents or the answer of the officer . . . is false, misleading, or inconsistent with the requirements of this chapter.” (Elec. Code, § 11042.5, subd. (b).)
The trial court granted appellants’ first writ of mandate cause of action for failure to comply with the Elections Code. The court framed the key question as follows: “whether elections officials are without the power to reject recall petitions containing false or misleading information, so long as the petitions substantially comply with the statutory formatting and content requirements . . . .” The court concluded the City lacked authority “to make determinations regarding the veracity of
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statements in a recall petition . . . . [T]he City ha[d] a ministerial duty to approve, and allow circulation of, the April Recall Petition.”2 A writ of mandate issued on May 24, 2024.
In November 2024, the voters recalled Rushing. In December, appellants filed a motion for private attorney general fees. (§ 1021.5.) The trial court denied the motion. The court found the first cause of action enforced an important right “by limiting the elections official to the ministerial duty of determining whether a recall petition meets the technical requirements set forth in the Elections Code and prohibiting the elections officials [sic] from expanding her role to include discretionary decisions regarding the veracity of statements made in a recall petition.”
But the trial court determined the litigation did not confer a significant benefit on the general public. The court observed that “regardless of this action, the City had certified a petition seeking Rushing’s recall.” Thus, the court determined appellants needed to show the two contested statements “mattered in some way that benefited the public.” It concluded appellants failed to do so.
DISCUSSION
“[E]ligibility for section 1021.5 attorney fees is established when ‘(1) plaintiffs’ action “has resulted in the enforcement of an important right affecting the public interest,” (2) “a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons” and (3) “the necessity and financial burden of private enforcement are such as
2 The court did not reach the issue of whether Elections
Code section 11042.5 was the exclusive remedy available to elections officials to challenge recall petitions.
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to make the award appropriate.”’” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214 (Whitley).)3 “[I]n determining the ‘importance’ of the particular ‘vindicated’ right, courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 936 (Woodland Hills).)
“[T]he ‘significant benefit’ that will justify an attorney fee award need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.” (Woodland Hills, supra, 23 Cal.3d at p. 939.) However, section 1021.5 attorney fees are not appropriate whenever a statute is enforced. (Ibid.) Nor are such fees warranted in every election law case. (Travis v. Brand (2023) 91 Cal.App.5th 996, 1011.) Instead, a trial court should “determine the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” (Woodland Hills at pp. 939-940.)
3 Section 1021.5 provides in pertinent part: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”
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Generally, the award or denial of section 1021.5 attorney fees is reviewed for abuse of discretion. (Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, 828 (Sandlin).)
Respondents contend the litigation did not enforce an important public right because “the right to submit recall petitions containing false or misleading information cannot be considered an important public right.” Respondents mischaracterize the right at issue. They assume that the statements in the recall petition are, in fact, false or misleading. But the trial court’s ruling enforced appellants’ ability to exercise their free speech and petition rights without officials unilaterally determining the truth or falsity of—and then censoring—their views under the aegis of a statute designed to verify the “form and wording of the petition . . . .” (Elec. Code, § 11042, subd. (a).)
Our Supreme Court has recognized that “[f]reedom of speech is ‘a right which is at the fountainhead of all our liberties’” and that “‘[t]he right [to petition] in California is . . . vital to a basic process in the state’s constitutional scheme—direct initiation of change by the citizenry through initiative, referendum, and recall.’” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 319 (Lucky Stores), italics added; Cal. Const., art. I, § 2 [liberty of speech]; Cal. Const., art. II, § 13 [power to recall officers].) The trial court did not abuse its discretion in finding appellants enforced an important right.
We conclude, however, that the court did abuse its discretion in finding the litigation did not confer a significant benefit on the general public. The court found that “to show that certification of the April Recall Petition itself constituted a significant benefit to the general public[,] . . . Petitioners needed to show the differences between the two recall petitions mattered in some way that benefited the public.” But this unduly narrow
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framing discounts the less tangible benefits that flow from the ruling prohibiting unilateral official censorship.
Lucky Stores informs our conclusion. There, plaintiffs attempted to gather signatures for a ballot initiative in front of a supermarket owned by the defendant. After store officials ordered plaintiffs to stop, plaintiffs obtained injunctive relief in the superior court. (Lucky Stores, supra, 34 Cal.3d at p. 316.)
Our Supreme Court rebuffed the defendant’s contention that the litigation did not confer a significant benefit on the public. After noting the vitality of the rights to free speech and petition, the Court observed that “[w]hile these rights are by nature individual rights, their enforcement benefits society as a whole. Indeed, only by protecting each individual’s free speech and petition rights will society’s general interests in these rights be secured.” (Lucky Stores, supra, 34 Cal.3d at p. 319.) Plaintiffs had no personal pecuniary interest but “sought to enforce their fundamental rights to speak freely and to petition the government. Litigation enforcing these rights necessarily confers a significant benefit on society as a whole.” (Id. at p. 319, fn. 7.)
Here, appellants’ litigation likewise enforced the fundamental rights of free speech and petition. Given the gravity of these rights, this enforcement conferred a significant public benefit, regardless of whether the contested statements in the petition impacted the Rushing recall effort. The significant benefit under section 1021.5 “need not represent a ‘tangible’ asset or a ‘concrete’ gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.” (Woodland Hills, supra, 23 Cal.3d at p. 939; see also Planned Parenthood v. Aakhus (1993) 14 Cal.App.4th 162, 171 [significant benefit “may be conceptual or doctrinal” in nature].) We are met with one such case. The “benefits of [appellants’] victory will be shared by” others who can pursue recall petitions
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without the specter of unjustified official suppression. (County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848, 867, fn. 12.) The rights vindicated by appellant’s litigation “inure to all persons and strengthen our democratic institutions as a whole.” (Lucky Stores, supra, 34 Cal.3d at p. 324.)
The trial court did not determine whether “‘“the necessity and financial burden of private enforcement are such as to make the award appropriate.”’” (Whitley, supra, 50 Cal.4th at p. 1214.) On remand, the trial court will make that determination in the first instance, as well as any others that are appropriate. (Cf. Sandlin, supra, 50 Cal.App.5th at p. 831.)
DISPOSITION
The trial court’s April 4, 2025 fee denial is reversed, and the matter is remanded for further proceedings consistent with this opinion. Appellants shall recover their costs on appeal.
NOT TO BE PUBLISHED.
CODY, P. J.
I concur:
YEGAN, J.
MCKAIG, J., Dissenting: I respectfully dissent. The majority holds the trial court was required to find the litigation conferred a significant benefit based solely on the importance of the right to file a recall petition without censorship by the City Clerk. Appellants did not make this argument to the trial court and even if they had, the record supports the court’s denial of attorney fees.
In the trial court, appellants made one exceedingly brief argument in support of their contention that the litigation conferred a significant benefit on the general public. Specifically, they argued:
“Petitioners have conferred a significant benefit on the general public by enabling District 2 voters to participate in the selection (or, in this case, the rejection) of their elected representative through the recall process in the November 2024 election. For all the reasons described above, promoting the democratic process confers a substantial benefit on the public.” There were no “reasons described above” in this section of appellants’ brief, but in the preceding section concerning the enforcement of an important right, appellants argued the litigation prevented the City Clerk from removing information from the petition that would have “informed voters about key issues that were relevant to the recall campaign.”
This was the extent of appellants’ argument concerning the significant benefit conferred by the litigation. The trial court’s written ruling addressed the argument appellants made. The court pointed out that prior to the lawsuit, a recall petition had been filed and circulated, albeit without the two offending statements. Appellants did not establish a subsequent recall petition inclusive of the disputed statements was ever circulated,
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and if so, what impact any such petition had on the election. The court noted appellants failed to establish the disputed statements were true. Therefore, the court could not determine the statements were informative or “relevant” to the recall campaign. As a result, the court found appellants failed to establish the litigation was necessary or even helpful to District 2 voters’ participation in the recall election. The court’s rejection of appellants’ argument was not an abuse of discretion.
The majority does not address the argument actually made to the trial court and instead faults the court for failing to adopt an argument that appellants never made; namely, that their lawsuit conferred a significant benefit on the general public because it permitted all persons to “pursue recall petitions without the specter of unjustified official suppression.” (Maj. opn. ante, at p. 7.) The court had no opportunity and was not required to consider arguments not made to it, nor was it required to develop or make appellants’ arguments for them. (Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 940 [“the correctness of the trial court’s ruling must be judged by the evidence and argument before it at the time”]; see also Truck Ins. Exchange v. AMCO Ins. Co. (2020) 56 Cal.App.5th 619, 635 [arguments not made in the trial court are forfeited on appeal].)
Even if the record could be construed to suggest that appellants made the argument advanced by the majority, the trial court would not have abused its discretion in rejecting it.
First, reasonable minds may differ as to whether a significant benefit was conferred here. This case involved a recall petition, which is an official election document subject to government regulation. (San Francisco Forty-Niners v. Nishioka (1999) 75 Cal.App.4th 637, 648 (Nishioka) [“the law is clear that elections officials have a ministerial duty to reject petitions” that suffer from a substantial statutory defect “directly affect[ing] the
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quality of information provided to the voters”].) Recall petitions enjoy less protection than speech in traditional public forums, making this case distinguishable from the weighty free speech rights at issue in Press v. Lucky Stores, cited by the majority. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 316 [“fundamental rights of free expression and petition guaranteed by” the Constitution were at issue where case involved signature gathering at large shopping center].)
This case also involved potentially false and misleading information in an official election document. False and misleading information in an official election document does not promote the democratic process – it undermines it. (Nishioka, supra, 75 Cal.App.4th at p. 649 [government appropriately regulates official election documents because “[o]rdinary citizens with a sense of trust should be able to believe in the accuracy of what they are signing.”].)
When analyzing whether a significant benefit has been conferred, a trial court appropriately considers all relevant circumstances, including whether a benefit has actually been obtained from a “practical perspective.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 938- 939 [court must use discretion to “realistically assess the litigation and determine, from a practical perspective,” whether gains obtained conferred significant benefit to general public].) From a practical perspective, the trial court’s concern about the potential falsity of the disputed statements (and the resulting erosion of public confidence in the election process) undercuts the benefit gained by prohibiting the City Clerk from excluding those statements from the recall petition. (Compare Willard v. Kelley (2015) 238 Cal.App.4th 1049, 1057 [resolving dispute over factual accuracy of statement about candidate’s personal history did not confer significant benefit]; Mandicino v. Maggard (1989) 210
Cal.App.3d 1413, 1419 [“de minimis modifications to opinion statements in the ballot argument failed to confer a significant benefit upon . . . voters.”].)
Finally, although the majority states the right established in the litigation broadly benefited “all persons,” there are no facts in the record that support this assertion. (Maj. opn. ante, at p. 8.) Appellants did not identify evidence or authority demonstrating that the trial court’s ruling had any application beyond this case. Appellants did not establish the litigation impacted the 2024 election. In terms of the trial court’s directive to the City Clerk, there was no discussion of whether the Clerk’s refusal to file the original petition was a one-time event or a chronic issue. There was no evidence or argument concerning whether the City changed its practice in response to the litigation or simply abided by the court order requiring acceptance of the recall petition in this case. The absence of facts about the scope of the litigation’s impact stands in sharp contrast to the facts in Lucky Stores. In that case, the petitioners established the trial court’s ruling applied broadly to enable signature gatherers to access shopping centers in many other locations, to enlist volunteers, to educate others about free speech rights and to obtain financial contributions. (Press v. Lucky Stores, supra, 34 Cal.3d at p. 321.)
The trial court’s ruling contains a correct statement of the applicable law. It does not contain an analysis of arguments that were not presented to it. In this scenario, we are required to presume the trial court properly applied the law and acted within its discretion unless appellants affirmatively show otherwise. (Canyon Crest Conservancy v. County of Los Angeles (2020) 46 Cal.App.5th 398, 409; see also Weissman v. Los Angeles County Employees Retirement Assn. (1989) 211 Cal.App.3d 40, 46-47 [reversal warranted only if “‘“no reasonable basis for the action is shown.”’”].) Appellants have not made such a showing.
The trial court’s ruling should be affirmed. NOT TO BE PUBLISHED.
McKAIG, J.*
* Judge of the Superior Court for Ventura, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
Craig van Rooyen, Judge
Superior Court County of San Luis Obispo
_________________________________
Hanson Bridgett, Ellis F. Raskin for Plaintiffs and Appellants.
Lozano Smith, Quentin C. Cedar for Defendants, Respondents, and Real Party in Interest.